Sunday, February 3, 2008

Preparing Your Client for Deposition

The most important deposition in a case is not the opposing party’s. it is your client’s deposition. The admissions he makes can hand a summary judgment or a favorable jury verdict to the other side. To avoid that, consider the following when preparing your client for deposition.

It takes time. Make time. Preparing your client for deposition is time-consuming. For every hour you expect his deposition to last, plan on spending three preparing him.

Prepare early. Don’t wait until the day before (or even the week before) the deposition to start preparing your client. Preparations should start before opposing counsel sends out the notice.

Prepare a document binder for your clients. The worst feeling in the world is seeing your client being asked questions at deposition about a document he has never seen before. To avoid this, procure all the relevant documents through your case investigations, requests for production and third party subpoenas, and prepare a binder of all the documents you expect your client to see at deposition. Mail him the binder, have him review them at his leisure and then go through them in detail with him in person.

Conduct a mock deposition. Just as your client should not see a document for the first time at deposition, he should not be asked a question for the first time at deposition either. Ask him every question you expect opposing counsel to ask him. Neither you nor your client should be surprised by any of the answers he gives at deposition.

Videotape the mock deposition. Consider video taping the mock deposition and viewing portions of it with your client. Discuss with him his delivery style, his body language and his answers. Seeing oneself on video can be very educational.

Tell the truth. There are all sorts of rules attorneys tell their clients to follow at the deposition. The first and foremost is to tell the truth. A witness never has to worry about “keeping his story straight” or wondering if opposing counsel is going to trip him up on one or more of his answers if he sticks to the truth.

Give your witness a deposition transcript. You can describe a deposition all you want. You can even subject your client to a mock deposition. But there’s no substitute for an actual deposition. To give your client the complete experience before subjecting him to it, consider giving him a transcript or even a DVD from another deposition.

Strike the proper balance. There is no question that your client can sink the case with the words that come out of his mouth. Of course, he can become so conscious of this, that his nerves get the best of him. Treat the client in such a way to convey the importance of his deposition without making him impotent with fear.

Your client’s case may rise or fall on the words that come out of his mouth. Make sure he knows to choose those words carefully.

I believe the privilege can be lost regardless of whether the witness is a party or not. See F.R.E. Rule 612. Writing Used to Refresh Memory, which provides that:

"Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial."

It has been my experience that the documents will be directed to be produced regardless of when the document is shown to the witness.

Frank, you might want to see Vita-Mix Corp. v. Basic Holdings, Inc., 2008 WL 495781, where the Court directed a party employee witness to produce all documents looked at to refresh his recollection. The court said ""it would be unfair to expect [plaintiff's attorney] to be able to adequately cross-examine Mr. Daniels without knowing which documents refreshed his recollection and formed the basis for the corporation's knowledge on certain matters." This case is mention and discussed at EvidenceProf Blog: http://lawprofessors.typepad.com/evidenceprof/